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Colossal tragedy and corporate liability

MUHAMMAD NURUL HUDA
THE fact that the Rana Plaza tragedy took away more than 1100 unsuspecting lives on April 24, 2013 and that the nation is yet to witness manifest punishment of those responsible for criminally negligent acts strikes at the base of our civilised existence. Financial compensations and efforts to rehabilitate mentally and physically shocked workers may cause some relief, but effective punitive measures with a view to deterring the potential offenders from causing such ghastly mischief are not in sight.
It is quite clear by now that the tragedy befell unsuspecting workers and the society at large not entirely due to one man's greed and desperation but owing to failures and complicity of multiple agencies in doing what should not have been done as also not doing what ought to have been done. This brings us specifically to the issue of corporate criminal liability. In spite of successive incidents pointing to the urgency of acting against corporate criminals, we have not witnessed any action towards that.
The reality on ground, however, is disturbing because the fear of authority has almost disappeared. The recurrence of the disasters caused by building collapse and fire testifies to the indifference and callousness of the management about taking safety measures despite repeated appeals and warnings. That brings us to the issue of increasing concern over the threat to public safety caused by the failure of corporations and companies to provide adequate safety standards for the potential victims.
There has been strong criticism of company management in respect of accidents resulting from managerial incompetence. The questions for consideration are, if companies and their senior managers could be exposed to criminal liability for incompetence and failure to act when the safety of the public is put at risk and consequently, if such corporate liability is accepted, how the law should be framed to ensure effective enforcement.
The discussion of aforementioned corporate liability relates to the boundary between civil and criminal liability. The civil courts would award compensation when negligence by way of a breach of legal duty of care results in incidents of damage to person and property. The issue of corporate liability arises in situations in which individuals at the moral centre of the society may be identified as being criminal. This is so because criminal law, from a juridical point of view, was never thought to be an appropriate mechanism for dealing with high-flying corporate criminals. The impression one gets is that although corporations and companies are formally subjected to the criminal law, practically they remain outside its ambit. The present approach, which seldom attributes criminal liability to companies or their directors/managers, reflects the general influence of political individualism in criminal law theory.
What follows from the above is that only individuals can act and, therefore, it is right to concentrate attention on the blameworthy individuals. Naturally, this strength- ens the notion of individual responsibility, with intention being the central concept in attributing criminal blame. However, such a view significantly ignores the impact of corporations in the modern world. In reality, the activities of corporations/companies often become a threat to the wider community.
According to expert view, a corporation is guilty of corporate killing if a management failure by the corporation is the cause, or one of the causes, of a person's death; and that failure constitutes conduct falling far below what can reasonably be expected of the corporation in the circumstance.
One needs to know that there is a management failure by the company if the way in which its activities are managed or organised fails to ensure the health and safety of persons employed in or affected by those activities; and such a failure may be regarded as a cause of a person's death notwithstanding that the immediate cause is the act or omission of an individual.
The above offence points to the liability of failure to ensure the health and safety of persons affected by the activities of a company. The essential element is that liability is attributed to the failure of the management rather than to the failings of individuals. The offence allows a company to be at fault in a criminal sense through the shortcomings in its policies and operations without any need to associate this with a human agent individually or collectively. Additionally, the criminal liability of the company will be judged independently of the employees.
The important lesson for us is that companies should be open to both civil and criminal liability because they create the structural context for the individual's conduct. The corporation which appoints the individual should bear primary liability or at least concurrent liability.
Disasters occurring in Bangladesh are strongly suspected to be attributable to high levels of neglect that should be the ultimate responsibility of the higher management. It is thus only natural that individuals who enjoy many financial rewards and advantages of the boardroom should not be insulated from criminal responsibility when things go wrong. Corporate status must not protect higher management when casualties result from the actions of the company. Our approach should be based on the assumption that irresponsible corporations are criminal and that the directing and managing elements therein stand the risk of facing potential criminal convictions.
The Bangladesh Garments Manufacturers and Exporters Association (BGMEA) has realised its regulatory and oversight responsibilities relating to safety of the premises of the manufacturing units and has asked for particulars from all units to ensure compliance with the building code. They have to be assisted by other public statutory agencies in doing the needful.
The BGMEA may pride itself by claiming to be the biggest foreign currency earner, but the supreme callousness towards human safety thus far will be an indelible stigma to live with. The building housing BGMEA headquarters, by some accounts, is an illegal construction and, therefore, the cynics cannot be blamed for doubting the efficacy of the management instructions issued from there. Unless we can wriggle out of the disobedience of law mode by establishing the fear of punishment, more tragedies are likely.
The writer is a columnist of The Daily Star.